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Legal Review of all Employment Law Derived from European Law

By October 25, 2022Employment

On 22 September 2022, the Retained EU Law (Revocation and Reform) Bill 2022-2023 was introduced to the House of Commons. Given we are now several years on from Brexit, this bill is aimed at reviewing all secondary legislation which stems from our membership of the European Union, with a view to either retaining it, changing it or removing it altogether. 

The Bill, if implemented in its current form, provides for a deadline of 31 December 2023 in which each piece of EU derived UK secondary legislation will be revoked (and therefore no longer enforceable) if it has not by that date been retained or varied. However, the Bill does specify that this deadline can be extended to 23 June 2026. 

This means that as a consequence of Brexit, the Government now face the huge task of reviewing all areas of secondary legislation which is derived from EU law and deciding whether to retain it in its current form, re-write it, or remove it completely. 

So how does this affect employment law?

As some employment law is derived from EU law, it’s possible that employers’ obligations and employee rights will be impacted by the Bill.

It’s likely that the following are some key areas of employment law that will need to be reviewed:- 

  • The Transfer of Undertakings (Protection of Employment) Regulations 2006 

More commonly known as TUPE, these regulations concern protecting employee terms of employment on a transfer of a business or change in service provision, and impose an obligation on the businesses involved to inform and consult with all affected employees. They also restrict the circumstances in which employment contracts can be terminated and terms can be changed in connection with the transfer or service provision change. 

  • The Working Time Regulations 1998 

These regulations deal with limits on working hours, rest periods and breaks, and holiday pay and entitlement. In respect of the latter, calculation of holiday pay has been the subject of significant litigation in the Court of Justice of the European Union (CJEU) and has therefore been heavily influenced by decisions of the CJEU. As such, it will be particularly interesting to see how the current law in this area will evolve. 

  • The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2020 

These regulations allow part-time workers to challenge less favourable treatment on the ground of their part-time status if such treatment cannot be objectively justified. 

  • Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 

These regulations prevent the less favourable treatment of fixed-term employees as compared to permanent employees and to prevent abuse arising from the use of successive fixed-term contracts. They also provide fixed-term employees with the right to request a written statement of the reasons for any less favourable treatment from their employer. 

  • The Agency Workers Regulations 2010 (SI 2010/93)

These regulations provide agency workers with the right to be engaged on terms that are no less favourable than if they had been recruited directly by the hirer, including in respect of pay, holiday pay, working hours, overtime, maternity and anti-discrimination provisions. 

This is not to say that these areas of law will be changed, but they will be subject to review in light of the Bill. Only time will tell as to how this will affect businesses and employee rights, but it is advisable to keep up to date with any such changes that may affect the operation of your business. 

If you require any advice regarding any of these areas of law, please do not hesitate to contact a member of the employment team.   

Jennifer Johnson

Author Jennifer Johnson

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